A quick question about a deadly weapon issue that is currently giving me fits.

Facts: The defendant and a passenger were pulled over for failure to have a front license plate. Lots of drugs and a pistol (between defendant and passeneger) were found in the car. The defendant was indicted for felony drug possession and a deadly weapon notice was given.

At trial, a jury convicted the defendant w/out any d/w issue being submitted to them -- and w/out any parties charge. At punishment, the trial court found the d/w issue true, but orally declared it was "as a party." (Does that make any sense?)

I believe that the trial court can enter a d/w finding. I also think that we would win a sufficiency review. What I am particularly confused about is the significance of the "as a party" business by the trial court after the jury found the defendant guilty as a principal. Your thoughts, please.

Was the deadly weapon notice in the indictment, i.e. "and the defendant did use and exhibit a deadly weapon, to wit: a firearm"? Did you give separate written notice? If it was in the indictment, the finding was implicit notwithstanding the absence of a specific jury issue. If not, then . . .

While Apprendi v. New Jersey seems to indicate the jury should decide DW findings in the guilt phase, the punishment scheme at issue was unlike ours in that all defendants (except death penalty) in New Jersey go to the judge for punishment. So, we should be able to argue that, by electing judge punishment, the defendant affirmatively waived his right to jury determination of the DW. May or may not work--the Supremes are looking at a new Apprendi issue in Ring v. Arizona.

Finally, just 'cause the jury didn't have parties as an issue doesn't mean the trial court can't consider that theory in the punishment phase. If an appellate court can consider party status (absent a parties charge) on appeal under Malik, then why not a trial court assessing punishment?

I'm sure the Williamson County District Attorney will clear all this up!

In response to your queries John R: We put a d/w notice in a separate paragraph of our drug-possession-with-intent-to deliver {1-4 grams}indictment. The notice said that the defendant either (1) used or exhibited a d/w or (2) was a party to the offense and knew that a d/w would be used or exhibited. Also, since the d/w notice was not part of the delivery count it seems unlikely to me that the conviction for delivery could be construed as a d/w finding. Can you point me to something that would indicate otherwise?

Finally, my reading of Apprendi is that it won't apply to a typical DW finding.
The operative passage of Apprendi says: "any fact that increases the penalty for a crime *beyond the prescribed statutory maximum* must be submitted to a jury . . . . " A DW finding usually won't do that -- the exception being where a DW finding is used to turn a SJF into a 3rd degree. See State v. Cox, 37 P.3d 437 (Ariz App. 2002) (Apprendi doesn't apply where only statutory minimum was increased) & the fine John Bradley article {Post Apprendi, Table 1} in the July/ August 2000 issue of the Texas Prosecutor.

I'm mostly wondering how bad it is that the trial court said that it was making the d/w finding "as a party." Does it make any sense to talk about "a party" to a d/w? Does this contradict the jury's verdict? Is the trial court trying to say that the passenger used the d/w but the defendant knew he would?

Your thoughts, please.

1. Yep. Each county is different, though, so it is good to know just what you're talking about.

2. Our DW is interesting in that it doesn't affect the punishment assessed directly, but does indirectly. Cf. also family violence finding, that affects future cases. We've got some judge's here using special issues for DW during guilt (I don't think they need to do that).

3. I can't think of any problem. Maybe your judge was thinking of the sentence of Art. 42.12, �3g(2): "the [defendant] was a party to the offense and knew that a deadly weapon would be used or exhibited."

If the law of parties was not submitted to the jury, then of course the jury found the defendant guilty as a principal as to the drugs under either a sole or joint possession theory, either of which required an affirmative link to the defendant, and made no finding as to the use of the weapon. Since there was no finding that defendant was "a party to the offense", presumably under your facts that would be the offense of the passenger, it becomes immaterial that the defendant knew the weapon would be used or exhibited by the passenger (which is apparently the finding made by the trial judge). Thus the defendant argues his parole eligibility is unaffected (and your efforts to get an affirmative finding wasted), except the written judgment does not incorporate the additional oral finding and TDCJ will likely count it as a 3g offense, until the matter is otherwise clarified. Note, however, that a principal is a party to the offense under 7.01 (a)-- doesn't it get confusing to call the principal a "party" when we call the law concerning liability of accomplices the "law of parties"? So, maybe the announcement that your guy's use of the weapon was as a party is pretty meaningless, though I have to believe the language in 3g after the "or" was intended to refer to use or exhibition of the weapon by someone else (e.g., the accomplice). Its cases like these that demand either the statute be reworded or the courts reinterpret what an affirmative finding consists of. I'd say you win by getting a written judgment that corrected (ignored) the ambiguous, wacky oral pronouncement.

Can't seem to find "joint possession" language for my charge. Anyone have it handy or can tell me where to find it ?

Not sure about the correct language for the charge, but here is the applicable law (from Curtis, 519 S.W.2d at 885-6):

An accused may with another or others jointly possess dangerous drugs or narcotics. Mere presence, however, at a place where narcotics or dangerous drugs are being used or possessed by others does not in itself justify a finding of joint possession. The State must show that (a) the appellant exercised, either singularly or jointly, care, custody, control and management over the contraband and (b) that he knew the object he possessed was contraband. The evidence must affirmatively link the accused to the contraband in such a manner that a reasonable inference arises that the accused knew of its existence and whereabouts. This affirmative link is established by showing facts and circumstances which indicate the accused's knowledge and control of the contraband.

Thanks, Martin.

We've used this:

Our law provides that a person commits the offense of Possession of a Controlled Substance if he unlawfully possesses a controlled substance.

�Possession� means actual care, custody, control or management.

Possession need not be exclusively with the defendant. Joint possession is sufficient if the evidence shows beyond a reasonable doubt that the defendant exercised actual care, custody, control or management of the alleged controlled substance. Mere presence alone is insufficient to prove possession.

And I usually talk about Pizza on Voir Dire.

And then in argument you say it was joint possession no matter how you slice it?